Under the British Columbia Wills, Estates and Succession Act (“WESA”), a spouse or child has the right to challenge the distribution of assets set out in a deceased’s will.  This is called a “wills variation claim”, and the right to bring such a claim is set out under section 60 of WESA, which states that the court may vary the distribution set out in a will if the will maker “failed to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children.”

Note, only the spouse of the will-maker (which includes common law spouses), or the will-maker’s children can bring a wills variation claim. Siblings, parents, other family members and friends are excluded from the right to vary a will.

In order to determine if the will-maker made “adequate provision”, a court will consider a multitude of factors, including:

• The relationship between the will-maker and claimant, including abandonment, neglect and estrangement by one or the other;
• The size of the estate;
• Any contributions to the estate of the deceased by the claimant;
• The reasonably held expectations of the claimant;
• The standard of living of the will-maker and claimant;
• Gifts and benefits made by the will-maker outside the will;
• The will-maker’s reasons for disinheriting;
• The financial need and other personal circumstances, including disability of the claimant; and
• The competing interests of the claimant to other beneficiaries.

Determining whether the will should be varied is a contextual analysis and therefore, there is no clear test for what constitutes “adequate” provisions to a spouse and/or child.

A spouse or child who wishes to bring a wills variation claim has 180 days after probate has been granted to do so. Within 30 days of filing, the executor of the deceased must be served with the notice of a claim. For this reason, we recommend that executors wait 210 days before distributing the assets of an estate to ensure that there will be no claim to vary the will.

In a future blog, we’ll discuss some strategies to avoid a wills variation claim.

Author: Jane Otterstrom